Harris v. MSPB

Case: 24-1659 Document: 17 Page: 1 Filed: 08/21/2024

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

TIFFANY HARRIS, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2024-1659 ______________________

Petition for review of the Merit Systems Protection Board in No. AT-3443-21-0506-I-1. ______________________

Before LOURIE, CUNNINGHAM, and STARK, Circuit Judges. PER CURIAM. ORDER In response to this court’s show cause order, the Merit Systems Protection Board urges summary affirmance. Tif- fany Harris requests transfer to the Supreme Court. I. Ms. Harris was employed by the Department of Veter- ans Affairs as an Advanced Medical Support Assistant. In April 2020, Ms. Harris filed an Equal Employment Oppor- tunity (“EEO”) complaint alleging she was retaliated

Case: 24-1659 Document: 17 Page: 2 Filed: 08/21/2024 2 HARRIS v. MSPB

against based on prior EEO activity. Specifically, Ms. Har- ris alleged that she was subject to a 5-day suspension, counseling, denial of telework, being put in absent without leave status, and being subject to mistreatment by cowork- ers. On January 29, 2021, the Department issued a final agency decision (FAD) denying her complaint. She ap- pealed that decision to the Equal Employment Opportunity Commission, which affirmed the agency’s decision. The Department removed Ms. Harris on July 12, 2021. She filed an appeal at the Board challenging her removal in part as unlawful retaliation for protected EEO activity. The Board ultimately sustained the agency’s removal deci- sion. Ms. Harris then filed a complaint in the United States District Court for the Northern District of Alabama challenging the Board’s decision as well as asserting un- lawful discrimination based on the alleged reprisals raised in her EEO complaint. See Harris v. Dep’t of Vet. Affs., No. 22-cv-00828-CLM (N.D. Ala.). That case is still pending. Several days after filing her removal appeal, Ms. Har- ris filed a separate appeal at the Board challenging the FAD. The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. Specifically, the administrative judge found that Ms. Harris was not challenging her removal or another action appealable to the Board and that the Board lacked independent author- ity to review a FAD. The Board affirmed that decision. Ms. Harris then filed this petition for review. II. Before we can address whether summary affirmance is appropriate, we must decide whether this court has juris- diction over this case. This court has jurisdiction to review a final decision from the Board except in “[c]ases of discrim- ination subject to the provisions of [5 U.S.C. §] 7702,” which are instead brought in district court. 5 U.S.C. § 7703(b)(1)(A), (b)(2); Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 437 (2017). For a “[c]ase[] of discrimination [to

Case: 24-1659 Document: 17 Page: 3 Filed: 08/21/2024 HARRIS v. MSPB 3

be] subject to the provisions of section 7702,” the employee must (1) “complain of a personnel action serious enough to appeal to the [Board]” and (2) allege “that the personnel action was based on discrimination.” Id. at 432 (cleaned up). The personnel actions that are serious enough to ap- peal to the Board are generally limited to “a removal,” “a suspension for more than 14 days,” “a reduction in grade,” “a reduction in pay,” and “a furlough of 30 days or less.” 5 U.S.C. § 7512; see Kloeckner v. Solis, 568 U.S. 41, 44 & n.1 (2012). We agree with the Board that we have jurisdiction, as this is not a “[c]ase[] of discrimination.” The Board here reasonably concluded that Ms. Harris’s underlying appeal was intended to challenge her FAD and not her re- moval. And our review of the FAD further leads us to agree that her appeal failed to raise a nonfrivolous allegation of Board jurisdiction, as the reprisal activity identified in the FAD cannot plausibly be read as one of the limited person- nel actions serious enough to appeal to the Board identified in 5 U.S.C. § 7512. See Perry, 582 U.S. at 431 (holding that a “nonfrivolous” allegation under § 7702 channels judicial review to district court); cf. Granado v. Dep't of Just., 721 F.2d 804, 807 (Fed. Cir. 1983) (dismissing petition for re- view for lack of jurisdiction where the allegation of Board jurisdiction was not found to be frivolous). It follows, we find, that this petition is not a “[c]ase[] of discrimination,” but instead falls within this court’s jurisdiction under § 7703(b)(1)(A). We further agree that summary affirmance is appro- priate here because there are “no substantial question[s] regarding the outcome” of Ms. Harris’s appeal. Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994) (citation omitted). The Board was clearly correct that prohibited personnel practices under 5 U.S.C. § 2302(b), including claims of prohibited discrimination and retaliation, are not an independent source of Board jurisdiction, see Schmidt v. Dep’t of Interior, 153 F.3d 1348, 1356 (Fed. Cir. 1998), and

Case: 24-1659 Document: 17 Page: 4 Filed: 08/21/2024 4 HARRIS v. MSPB

that the appellant failed to challenge any personnel action within its jurisdiction. Accordingly, IT IS ORDERED THAT: (1) The Merit Systems Protection Board’s decision is summarily affirmed. (2) Each side shall bear its own costs. FOR THE COURT

August 21, 2024 Date